Over eight years after the United States Department of Education’s Office for Civil Rights’ [“OCR”] issued its April 4, 2011 “Dear Colleague” letter on campus sexual assaults, the torrent of lawsuits continues, filed primarily by male students who claim they were unjustly disciplined in adjudicatory processes that were prosecuted ineptly or in bad faith. As this body of law has evolved, courts have been giving increasing credence to process-related constitutional and contractual legal theories, but they have routinely dismissed claims that the challenged discipline was driven by the student’s gender in violation of Title IX. It was, therefore, noteworthy when the United States District Court recently declined to do so in Harnois v. University of Massachusetts at Dartmouth.

One would be hard-pressed to find more egregious allegations than those in Harnois. The plaintiff, John Harnois, is a disabled veteran who enrolled at the University to pursue a doctorate in Oceanography. Harnois had a prior criminal conviction, which he disclosed, but he was assured that it would be kept confidential. Harnois maintained a 4.0 GPA during his first year of graduate studies and was recruited by Duke University’s Marine Lab for a summer internship. In May 2016, however, near the end of Harnois’ first year, Assistant Vice Chancellor for Student Affairs Cynthia Cummings summoned him to a meeting, accused him of “‘fraudulently disclosing his [criminal] history in his application’” and claimed “that several individuals ‘had recently filed formal complaints regarding [his] misconduct, which created a hostile learning environment.’”

Cummings allegedly declined to provide specifics of these complaints other than that they had been received as early as December 2015 — which, if true, would suggest a certain lack of investigatory alacrity on the University’s part – but told Harnois that if he withdrew from the school, he would not be subjected to a Title IX investigation and his criminal history would be kept confidential. Harnois declined to withdraw and, in what would prove a pivotal, albeit alleged, statement, Cummings “threated to ‘get his kind.’” He was immediately suspended, and Cummings subsequently ordered the Dean of Harnois’ degree program “‘to hold an unprecedented all hands meeting with compulsory attendance” regarding Harnois. Within a week, every faculty and staff member and student in his program was aware of his criminal record and the pending Title IX investigation. Furthermore, during the course of that inquiry, the University’s Title IX office allegedly approached two female students and asked them to file complaints against Harnois, both of whom declined.

On August 30, 2016, the University informed Harnois that it could not substantiate any violations of either school policies or Title IX. Nonetheless, it issued him a written sanction, limited his interactions with other students, confined him to “a remote, supervised workspace,” removed his faculty thesis advisor, and changed his matriculation status to a non-thesis degree candidate, an outcome that would seem analogous to a criminal defendant being found not guilty but still being sentenced. Perhaps not surprisingly, Harnois requested a leave of absence to seek stress-related psychological treatment.

Harnois’ subsequent lawsuit included four Title IX claims, including selective enforcement and erroneous outcome. “Selective enforcement” is just that – an assertion that the disciplinary process was applied selectively to a student based on gender. Harnois cited the pressure of OCR scrutiny – a standard trope in these cases – and further claimed that the then-recent settlement of an employment-discrimination lawsuit had “hypersensitized” the University. Unlike prior cases, in which the plaintiffs had been unable to draw a causal link between such speculative contentions and their own plights, Harnois had Cummings’ purported threat “to ‘get his kind,’” which was interpreted to mean “men.” Thus, the court held that Harnois had sufficiently alleged gender as a “‘motivating factor’ in the decision of UMass Dartmouth to initiate a baseless Title IX investigation.”

The court also declined to dismiss Harnois’ erroneous outcome claim, which requires evidence that casts doubt on the accuracy of a Title IX investigation’s outcome and shows gender bias to be a “motivating factor” behind it. The court cited “several alleged procedural flaws,” including the University’s alleged solicitation of complaints against Harnois – which, one reasonably assumes, would not have been necessary if the school had, in fact, had complaints as early as December 2015 – as well as the University’s failure to interview his witnesses, and, “most forcefully,” the school’s implementation of sanctions despite finding no violations of Title IX or school policy.

The survival of Harnois’ selective enforcement and erroneous outcome claims is a result that has eluded most, if not all, of the plaintiffs who have brought similar claims against their respective schools, a dubious distinction for UMass Dartmouth. It would have been interesting to read the University’s response to Harnois’ allegations, but this dearth of information is due at least in part to the fact that the court’s decision was in the context of a Rule 12(b)(6) motion, a procedural mechanism in which a defendant seeks the dismissal of legal claims based solely upon the allegations in the plaintiff’s Complaint, and in which the court must construe all inferences in favor of the plaintiff. One can reasonably assume, though, the defendants denied Harnois’ claims.

In many cases, the truth lies somewhere between a plaintiff’s sometimes hyperbolic allegations and a defendant’s flat denials. Harnois, however, has alleged conduct that, if true, should be easy for him to prove, such as whether there were any preexisting complaints against him, whether the University solicited complaints once its investigation began, and whether he was sanctioned despite not having violated either school policy or Title IX. If he can establish that such inequitable and unfair treatment occurred, he will still need to establish the defendants’ motive, but actions do not occur in a vacuum, and with the exception of mistrials, cases that go to a jury end with a verdict, not a shrug. Thus, if Harnois can convince a jury regarding the genesis, handling, and consequences of the Title IX investigation, it will not be difficult for jurors also to accept his claim that Cummings threatened him and that that alleged threat constituted gender bias.